SUPREME COURT OF CANADA
332
W33
HIS
MAJESTY THE KING RESPONDENT
Feb
28
Apr.25
.APPELLANT
AND
GEORGE MASON
RESPONDENT
SUPPLIANT
ON APPEAL FROM THE EXCHEQUER
operationsF
Dredging
workInterference
section
19
At Livingstone
to
shelter
had
respondent
and
tact
moving
with
the value
about
for
use
that
tug
servants
were
the
of
the crew
of
cost
Court
to
According
net
or
of
the
the
of
the
the
the
Crown
caused
SPRESENT
to
that
his
the
Canada
and
and
the
by
the net and
had
attached
in
the
Crown
the
con
into
The
action
the
loss
master
master
and
work
the
within
of
is
its
and
scope
attributable
of
to
the
tug
at
entitled
to
damages
the
of
its
for
loss
Lamont Smith
of
and
existing
Rinfret
duties
of
the negligence
of
was
damages
the
their
meaning
conditions
respondent
the
of
the dredge
of
crew
the
hear
crew
section
Act
management
the
to
jurisdiction
the
within
acting
Court
was
in
net and
Duff
of
De
supervision
came
damaging it
repairing
public
accidjent
Crown
circumstances
dent and
the
hired
tug
seriously
of
scow
the Exchequer
that
also
vants
under
dumping grounds
circumstances
employment upon
19
The
the
to
the
the
on
carried
being
cove
from
the net being
of
were
Works
Public
officers
its
leader
the
this
licence
under
Crown
the
by
In
draught
Act
month
one
the Exchequer
case
trap
of
scow
the respondents
recover
to
of
one
loaded
net
operations
Department
of
shallow
Fisheries
Dredging
the
of
direction
whilst
Held
set
Marine and
of
vicinity
of
salmon
owned
breakwater
is
of
boats
Court
navigationExchequer
33
Scotia
for
the breakwater
to
Held
Nova
Cove
provide
partment
with
Act
cFi.sheries
OF CANADA
netDamagesNegligenceJurisdiction-
i.shing
Public
COURT
and
the
time
of
for
use
Crocket
the
scow
JJ
the
ser
under
acci
the injury
Held
OF CANADA
SUPREME COURT
S.C.R
further
that
Act
Fisheries
those
in
avoid
an
stitutes
to
the
the
should
vessels
not
Court
to
or
not
33
as
that
an
the
of
to
care
con-
property
not
Ex
C.R
affirmed
APPEAL
from the judgment
Canada
the
of
Court
Exchequer
maintaining the respondents
of
petition
of
right
with costs
The
material
are stated
facts
the
of
and the questions
case
at issue
above head-note and in the judgment
in the
now
reported
Mclnnes K.C and
K.C
for
delivered
by
Varcoe
appel
the
lant
K.C
Ralston
The judgment
for
the
of
CROCKET J.This
the
was
sum
entitled
destruction
while
breakwater
have
factum
been challenged
on
this
us
within
the
terms
that
or provision
to entertain
closes
upon
The
the
Co N.S
court
does
or
in the
case
petition
the
trial
of
section
Act
which
case
point
that
did not
it
in such
jurisdictional
one which
of
If
19
the
CR
the
of the
is
argu
not
did
empowers
as
appear
appellants
there
therefore
clause
Ex
not
was taken on
was
34
of the
construction
partial
and scow
vicinity of
of
clause
quer Court Act R.S.C
clause
tug
Antigonish
objection
the
of
the
boat
in the
King
damages
for
Cove
on the
appeal
before
by
the
sup
1930
of
jurisdiction
ment
the
the
by him through
operations
Livingstons
the
Although
to
in dredging
summer
the
as compensation
costs
salmon trap-net
at
that
from His Majesty
to recover
of
judgment
adjudging
been sustained
of
employed
during
from
an appeal
is
$1500 and
of
to have
claimed
was
Court of Canada
Exchequer
pliant
the respondent
court
fall
Exche
no other
that
evidence
turns
1933
TE
KING
relieving
due
exercise
whether
Canada
of
was
section
interpreted
duty
others
navigation
to
Exchequer
be
net
of
meaning
the
of
of
property
obstruction
the
of
within
section
any
of
charge
the respondents
evidence
navigation
That
damage
Judgment
the
ipon
with
interference
court
dis
entirely
which enumerating
MAsON
SUPREME COURT
one of the
THE KING
MASON
Crocket
tion
matters
and
to hear
claim
Every
to
the person
or
servant
employment
Mr
engaged
of this
under
in
the
the
the
crew
in which
within
was
tug
dredge
the
or
in
they
meaning
under
the
trial
on the scow
the
duties
section
Crown
stated
and was acting
man
now
is
and crew
time
were not at the
Crown
employment
or
Works
Public
the
it
in
officer
the
of the
think
in
employed
the
of
that
of
in charge
In view of the
captain
of the
officer
department
not
being
Works
of
direction
department
we do
an
were
at
the
right
were
for
officer
the
in
Public
of
direction
that
Crown
the
of
witness
by
complained of servants
their
an
as
contend that
to
the
court
operations
and crew
Crown
the
for
the
of
direction
tug
under the
for
taken at the
men
and
hired
counsel
by
Department
the
testifying
of the
acting
within
to the
open
the
of
of
course
the
tug
and
grievance
within
the scope
meaning
the
of
19
was
in
within
the
however
reference
work in which
they were
meaning
to the
engaged
case
of
was not
by the appellant considered
amendment of 1917
7-8 Geo
in
change
in
the
Mignault
by
the
judgment
The
1921
of
same
this
latter
63
learned
court
case
in
judge
The
decides
public
was
relied
before
effected
pointed
the
very
out
by
The King
in
King
that
the
work
objection
clause
23
meaning as
Wolfe Company
its
The
the
that
The King
Paul
upon
material
contention
that
clause
of
The
chiefly stressed
and
duties
his
circumstances
work
work
dredging
Nickerson
operation
It
officer
any
and
the
in
the
owned by
Federal
and
in this
Crown
the
and that
Department
of
of
scope
captain
president
was
that
the
John
charge
learned
question
operation
the
that
public
supervision
department
that
the
were not
expressly admitted
on by
carried
the
not
Dominion
the
that
and
Crown
before
trial
breakwater
of
the
injury
or
of
clause
was
It
death
ant
work
tug and scow
was
of
the negligence
within
acting
contended
the
of
while
out
from
original jurisdic
follows
as
arising
resulting
public
any
the
of
servants
the
upon
reads
Crown
the
property
Crown
the
Varcoe
charge
were
to
shall have
court
determine
against
or
of
the
CANADA
OF
the
delivering
the
hroboun.st
words
1906 38 Can S.C.R 126
Can SC.R 141
1925 S.C.R 458
upon
SUPREME COURT
S.C.R
work
public
any
are not to
before
be given
caused
truck
the
department
within
fell
the
this claim also
that
upon
words
be limited to
to
not
the
Government and that
prehend
at least
defined
not
came
necessitate
been confined
negligent
any
in
of
move
his
the
berth in which
he
the
it
to
it so
that with
and
fishing
of
with
the
not
of
captain
when
of
alleged
or
the
to accept
collision
have
to
the
the
accident
agreed
ad
the
between
be said
may
question
had
to countersign
see
to
manner
all
the
latter
the
risk
with
tug
as
they were
that
set
for
of
all
he saw
absolutely
Act
was set
same
position
had been
district
issued
in the
net
in the
and
under
since
annually
the
the
was
issued
licence
net
fishery laws
net
suppliants
no question
Fisheries
the
the
it
suppliant
licences
the
valid
or that
in practically
observance
testified
not
Dominion
of the
the
that
navigation
to
fishery inspector
was
therein
the
was placed
same
issued
the
dam
so
suppliants
had
net had
suppliant
Government wharf
The
and
net
the
the
Crown contended
the
under the authority
1923
carried on in
tug and whether
the
an unlawful hindrance
licences
with
then existing position
its
raised that
that
to
injury resulting from the
precisely
that
whole controversy
the
few days before
to
Although
was
to
the
as to liability
conversation
dredge
the net
replace
substantially
in
asked him
of
trial
navigation
suppliant
the
as
useless until repaired
of
suspension
referred
parties on the
with
altogether
it
the
above
missions
com
on the occasion
and scow
the tug
contact
until he could
operations
the
into
as to render
it
to
to
enough
such
operation
clause
belonging
and which was being
that
disputed
question
to
in the
structure
they are broad
dredging
We
area
was
aged
work-
subsection
now used
as
for
the
off
the
and
the
district
year
it
and to
regulations
leader
manner
in
similar
whose duty
and
1933
THE KING
MASON
motor
of
terms and that the
its
physical
which we are concerned
in
in-
personal
transporting
the
of
within
work
public
any
meaning
falls
are
It
while
they bore
employment of
department of the Govern
Canada to
public work being carried on by that
of
think
Crown
the
for
driver
the
of
subsection
which
claim
that
negligence
of
property
appear in the
restricted meaning
and
335
the
in
ment
the
by
now
they
the
amendment
the
juries
men
as
CANADA
OF
set
prescribed
and
in
CrocketJ
SUPREME COURT
1933
THE
KING
MASON
the
ment
tiOn
CrocketJ
some
though
licence
raised as to whether
the
of the
rope and leader
the
than the
northwesterly
at the
jog on
about 90 or 100
feet
The dredging
was
low
wharf
and
water
O.S.T
On
the
scow
east
more
breakwater
the
with the wharf
line
to
the
the
side
of
feet
at
affording
draught
dredge
the
with dredged material
of
seems
it
of shallow
side of
south
depth of
secure
the
breakwater
wharf
of the
along
purpose
crafts
the
of
side
face
done
south
the
the
of
being
for
and
to
filled
was working
behind
breakwater
It
ready
towing
for
mile northwest
of
dumping ground more than half
The tug which had been employed
in
work for about two weeks for the purpose of towing
dumping ground and
and which
dredge
drew
about
them
returning
feet
and
aft
had
to the
breakwater
scows to the
of
captain
direction
shews
southerly
in question
day
close
jog
the
breakwater
shelter for boats
the
direc
claimed
suppliant
due west from the shore
about 376 feet
the
been
attach-
end the length of the whole structure being
The wharf is about 40 feet wide and forms
westerly
rectangular
the
followed
shewing the
plan
departmental plan in evidence
running almost
the
and as to the precise
thence
sketched
having
tug
authorized
itself
wharf
the
have
appears to
question
the licence
to
rope
OF CANADA
the
the
the
to
the
feet
for
ward having received its signal from the dredge during the
afternoon
when the tide was within about half an hour of
dead low
water
into
the
line
fastened
west end
the
end
into
with
There was no
dumping
was common ground that
that
the
The
scow
tug
but
net
employed
that
the
pared
drifted or
in the
operations
by
the
of
feet
department
lines
of
in
out
only
in
for
around
and
into
the
the
net
scow
the
ran into the
local
the
it
manoeuvring
this
the
the
deep water for
about these facts
during
the
northwesterly
scow
to the
McEachern
who saw
and tug both ran
tide
tow
anchor
its
out beyond
pull the
swung down on
witness
shewed two
was
it
swore that
captain
There was
and
dispute
anOther
scow
to
after getting
backed
her
position
shews proceeded
clearly
scow
breakwater
the
of
laden
wharf
the
to get
evidence
bow on and
the
to
of
direction
outer
as
breakwater
seaman
accident
swore
it
cove
The plan pre
dredging
operations
soundings running from the southwest
corner
the
of
the
wharf
the
of
longation
and
wharf
of the
inches
south
inches
feet
these
depth
and
ployed
in
two
courses
that
direction
southwesterly
would be no danger
there
move
out
west
and
one
anchor
The
contention
The
learned
and that
in
were
rather
course
as
and
current
the accident
vants
of
which
the
the
would
had
the
swung
tug
been
for
avoided
been
the
unable
or
counteracting
occasioned
this
of
of
aspect
real
wind
been
the
such
upon
have
the negligence
to
any
why
just
forces
might
it
Upon
attributable
his
reasons
by the master
breakwater
the
and
in
apreeiate
to
believe
avoided
was
states
described
very unusual
and
done
the accident
anchored
been
as
and
tug
have
Lordship
of
by the tug
when it did
have
from behind
emerge
conditions
scow which was
the
net
scow
con
time
should
His
am
the
was found that the
the
they were
to
commenced
unfavourable
so
the
if
there
cr
tug
as described
thereby
think
compensate
this
it
upon
tow
would have
and
done
the case
of
the
ser
respondent
the
shews
that
damage was
tug and
as he believed
evidence
have
quite
the
not
sufficiently
attributed
of
could
think
therefore
to
not think
handling
tow
not
would
not
that
at least
anchors
disposed
do
in
found
such
drift
to
likely
tug
and
tug
have
that
at the
prevailing
were
any event when
conditions were
difficulty
tide
collision
am
the
south
course was that
of
and wind
should
tow
equipped with
the
Crown
president
and
current
the
of
the
to
roughly half way out
point
in the
current
tide
captain
that
net
evidence
scow
that
and
or
there
not
the
also
management of the
was
damage
wholly attributable
the
ditions of
that
em
scow
the
would
the
on
net
and
towards
There was
at
the
of
negligence
and that
tow
net
feet
westerly
tug
they
employed
12
leader
was no
wind
the
of
so
be
that
of
running into the
both
for
feet
movement
breakwater
caught the
first
around on top
on the
men
in
in such
or scow
tug
as they did
two
out
scow
them
discloses
ample
exist
to
negligence
circumstances
We
justification
which
he
in the
negligence
in the
to
the
are
of
for
management
and conditions
opinion
this
THE KING
face
previously
tugs
backed
had they done
the
of
scows
other
from inside the
drifted on the net
of
the
was ample sea-room
that
the
at
channel
was
and that
the
of
inches
1933
shewed
lines
There was evidence
usually
pro-
and the second from
there
and
this
work
the
feet
in
almost due west
of these
first
inches
feet
wharf
the
The
varying from
to 13
to
tween
side of
337
300 feetone
of
distance
southwest
other
depth markings
that
OF CANADA
SUPREME COURT
S.C.R.J
that
finding
the
Crocket
SUPREME COURT
338
This being
1933
THE KING
MASON
the
had
suppliant
wharf
the
to
and that
It
that
same
The
been
renders
it
Melnnes
the
addressed
to
of
mount
rock
Fisheries
that
Act
be
of
damage
it
the
latter
the
it
is
evidence
such
to
licence
posi
that
the
tugs
were
para
plain
learned
orders
of
operations
that
cause
indicate
such
We
the
the
the
the
the
The
that
if
the
the
superintendent
owed
duty to the
the
of
acceptance
in
own
dredge
to
weather
There
non
is
of the
narrated
of
was
nothing
risk
fit
here
application
damage complained
tug
an
tug
that
the
of
to
no opinion
pronounce
captain
in
prop
the
and
conversation
contingency
is
Fish
those
due care
president
maxim has no
of the
of
It
the
of
whether
departure
wind
of
33
relieving
exercise
to
by
delay
licence
his
founded on the maxim volenti
defence
negligence
tion to
any
the
such
an interference
not
can
of others
not
the
the
conditions
navigation
to
in
anything elseconstitutes
or
or
of
dredging
The proximate
negligent
net
under
same
await better
injuria
that
Government
as
duty
property
were as described
the
to
the
suggestion
of the
of
As
to
acting
charge
ers
vessels
Mr
which
question
was
net
the
also
tug
president found upon the
interpreted
to navigation
conditions
the
of
have
to
proved
and
the
of
in no view
of
fishing
obstruction
undoubt
argument
in
waters
suppliants
properly
any
ertybe
upon
the
learned
with navigation and that
avoid
been
navigation
Department
the
the
imme
water
suppliant
navigation
in the
the
the
had
happened
us on his submission
say that
that
and
suppliants rights of fishery under
to
evidence
president
it
with
navigation
to the
to
the wharf
to
in the
the
as
to consider
interfere
sufficient
charge
have
or pole
wharf
negligent
to
from the
eries
tied
no right to put the leader and trap
as
rights
learned
damage
the
damage having
the
by
the
as
would
attach
unnecessary
conferred
tion
of
caused
to
the
to
right
fact
with
happen
to
adjacent
an unlawful obstruction
evident
connection
did
as
had
right
his leader
attach
to
fact of the rope being
been attached
diately
the
therefore
quite
is
the
causal
thing
leader
edly
was
his net
out
had no
not
It was conmanner above indicated
Crown that he was not authorized
to do so
navigation
points
had
or
whether
matter of no consequence
is
the
in
tended by the
Crocket
it
so
OF CANADA
in
the
the
attending
had no
rela
SUPREME COURT
S.C.R
Counsel
must be
confined
and
itself
contention
above
19
out
of
any
the
injury to the
can be proved
established
direct
true
that
cited in
vessel
other
or
is
profits
thing
more to compensate
but
has never
it
vessel
to render
that
of
the
Holme
owner
owing
ages
for
the
wrong
be
where
loss
of
the
with
the
and
See
sum
were
use
of the
that
in
of
entitled
to
dredge
it
any and
con
direct
Owners
of
52 Greta
the
they were
the
which
of
dredge
ship
owners though
definite
on
The owners
collision
its
necessitate
to
of
in
the
carry
an extent as
such
natural
complained
of his
know
for
is
any
recover
as
carrying
earning
value
not entitled to recover
case
this
to
the
the use
of
used
and as
the
in
is
injury
to
that
pocket in any
well
may
full
not
far
so
other chattel
he sustains as
In
Lords held
as the
for
It
in
and
could
been held
business
the
used
the loss
for
Sand Pump Dredges
Steam
jured
him
or any
damages which
sequence
damage
the
damages
destroyed
has been damaged
of the
was used
of
property
useless until repaired
it
suspension
under
thereof
loss the claimant
on of business
ing
all
total
where
compensation
further
or to property
totally
given
case
the
any
is
in
as
as for
vessel
if
There
The Anselma De Larranga
cases
appellants factum and in The Columbus
the
where
property
restrict
the award
person
some
in
business
to
appro
for damages aris
from the negligence
resulted
rule governing
of course
etc
was in
House of
not
out
recover
of
dam
Lord Herschell
said
take
prived
entitled
prove
of
to
what
it
the
to
be
use
-ecover
29
chattel
damages
has been
1913
law
clear
of
called
T.L.R
587
in
general
through
the
respect
tangible
person
wrongful
thereof
pecuniary
even
who
act
has
been
another
of
though
he
loss by which
1849
A.C 596
Rob
158
THE KING
MASON
Crocket
language of ss
officer
itself
consequence
injuries whether
ful
of
have
to
and
natural
property
of
1933
this
that
to
any
net
loss
Court had jurisdic
claim
of
the
to
for
opinion
award
to
words to
clearly nothing in these
of
the
injury
negligence
compensation
damage
Exchequer
for any
339
recoverable
are
determineand
resulting from the
that
the
Under
the
quoted
compensation
priate
for
We
inadmissible
is
to
no damages were
tion to hear and
ing
any event
in
that
contended
also
resulting therefrom
profits
of
Crown
the
for
CANADA
OF
de
is
cannot
under-
SUPREME COURT
1933
TEE
stand
to
KiNG
Mtsoi
CrocketJ
is
the
The
the
meant
that
wrong he
net
he
claimed
here
$1500
for the
awarded
$1000
resultant
$1000
learned
president
the net
and $500 as compensation
one
rant
month
There was
his conclusion
the
latter
net
as
amount
that
pocket
of
of
the
natural
on the
of
part
as
the
cost
the
loss
owing
to the
the
Solicitor
for
the
Solicitor
for
the respondent
appellant
of
restoring
evidence
cost
to
the
for
war
damage
of repairing
of
Crowns
with
damage to
use The
of its use
sustained
consequence
of
its
for
suppliant
The appeal should be dismissed
the
for
loss
we think ample
in addition
direct and
complained
out
money
of
has sustained
suppliant
and
sum
definite
is
OF CANADA
the
negligence
servants
costs
Appeal
dismissed
Hector
Mclnnes
Burchell
to
with
costs